Dear Colleagues, Some of the recent posts on copyright and fair use raise valid points. These deserve to be argued out with issues and examples made clear. At the same time, one issue must be considered. There is a current body of law, and on some of these issues, the law -- and not social practice -- is decisive. The problem of The Wind Done Gone is not the old copyright law, but the extension of this law under the Sonny Bono act. Ted Friedman writes, "we have a responsibility to push the boundaries of 'fair use,' and not accept the tightly constrained version copyright owners promote." This may be so. I'd like to see the argument and the distinctions. On one issue, though, Ted is wrong. He writes, "I'd like to [insist] that ultimately, definitions of 'copyright' and 'fair use' are established not just through court decisions, but through social practices that involve conflict and struggle." This is factually incorrect. Copyright is determined by legislative act and interpreted by the courts. The same holds true of fair use, though fair use tends to have more room for interpretation based on its nature as an interpreted part of the law. Conflict and struggle may lead to revised legislation, but they do not establish the law. Social practices influence legislation and interpretation both, but a legislature and a judge establish the law. When I was an editor and publisher, we used to run each issue of one sensitive newsletter dealing with the economics of art past a lawyer. We did this both to protect against the possibility of libel and for the fact that clear demonstration of careful procedures with intent to avoid defamation is itself protection against libel. My lawyer -- he represented Bullwinkle the Moose very successfully, and he had been the lawyer for Wilhelm Reich with less fortunate results -- once told me a rather impressive fact of law. He said, "If you take a pistol and walk out into the street and kill someone, you will have killed someone. You haven't committed murder until a judge and jury say you have." It is a mistake to confuse common sense definitions with law, and it is a mistake to confuse the process of influencing changes to the law with changing the law itself. If someone on AIR-L is elected to Congress or appointed to the federal bench, he or she can change the law. The rest of us must be content with conflict and struggle. There are those few whose individual conflict may indeed bring about changes to the law. This requires a willingness to enter the arena as Martin Luther King and others did with civil rights, or, perhaps more appropriately, as Peter Zenger did with libel law. It is one thing to speak of conflict and struggle. It is another to enlist for the fight as King or Zenger did. This distinction is worth considering. It is not clear that fair use constrains us from most important kinds of scholarship. Jonathan Sterne is right in his view that many publishers are greedy. This does not limit their rights under the law. On the other hand, their rights do not limit analysis and critique: they limit excessive republishing or free transfer of their materials. Times are changing in many important regards, though, and some of these are driven by the new technologies. The current debate on scholarly publishing and public libraries of scientific and scholarly journals offers an important example of the ways in which we can bring about important changes. See URL: http://www.nature.com/nature/debates/e-access/index.html The issues raised here are important and valid. I distinguish between descriptive statements of the law as it is and the situation as it should be. Most important, one must decide how one wishes to bring about change. If one wishes to engage in a form of civil disobedience by purposely challenging the law, that is one path. If someone on this list wishes to be the Peter Zenger of the new copyright law, all that is required is a willingness to take public action that puts it on the line. My view is that this is not necessary: much can be changed through dialogue, debate, and community action. Until the changes take place, the law is more clear than its critics seem to acknowledge. Ken Friedman -- ******************************************** Ken Friedman, Ph.D. Associate Professor of Leadership and Strategic Design Department of Knowledge Management Norwegian School of Management Visiting Professor Advanced Research Institute School of Art and Design Staffordshire University Norway +47 22.98.50.00 Telephone +47 22.98.51.11 Telefax Home office Byvaegen 13 S-24012 Torna Haellestad Sweden +46 (46) 53.245 Telephone +46 (46) 53.345 Telefax email: ken.friedman@bi.no ********************************************